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Ohio Court Says Apologies Cannot Be Used As Evidence

In the medical arena it is not easy for a doctor to offer an apology. Some states do not provide doctors with protections against offering an apology as evidence in court. This discourages many doctors from apologizing at all because they fear it may hurt them in court. Both insurers and lawyers discourage doctors from apologizing for this reason.

While hospitals are required to inform patients of serious mistakes, it is not clear how closely disclosure policies are followed. Even if they are followed, the disclosure may not necessarily be accompanied by an apology. There have been studies that show that apologies often work but it is still rare for an apology to be given in medicine. Despite the strong evidence that apologies help rather than hurt the doctor’s situation, there are still instances where a victim of medical malpractice may attempt to use the apology against a doctor in court.

In Ohio, a medical malpractice lawsuit was filed against Dr. Randall Smith. He had ruptured the bile duct of the patient, Jeanette Johnson, during a gall bladder surgery. Dr. Smith repaired the damage and told Johnson what occurred. There were complications however and Johnson became upset. Johnson’s emotional state prompted Dr. Smith to tell her that he took full responsibility for her injury and the subsequent complications.

Under Ohio’s “medical apology statute” admission of sympathetic statements made by a doctor to a patient is prohibited. At trial, the apologetic statement made by Dr. Smith was not admitted and he won the lawsuit. On appeal, the court reversed the trial court’s ruling, stating that the prohibition against apologetic statement being entered as evidence did not come into effect until three years after Dr. Smith made the statement.

Dr. Smith appealed this decision to the Ohio Supreme Court which reversed the appeals court decision. They found that since the issue stems from when the lawsuit was filed and not when the apology was offered. Therefore, the trial court was correct in its ruling.

There is evidence that apologies can prevent medical malpractice lawsuits. Patients just want and expect an explanation and apology after a medical error has occurred. Doctors have also indicated that they want to apologize. However, until there are more legal protections against the use of an apology in court, doctors will still be discouraged from apologizing.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.